This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A study of the cases in which building contracts have been held to be performed substantially shows a wide range of variance between actual performance and the performance required by the terms of the contract, and an apparent lack of harmony in the application of the general principles of substantial performance. It is quite possible that a fuller presentation of the facts of each case would show that the lack of harmony was more apparent than real. Generally speaking, a distinction may be drawn between imperfect performance, on the one hand, which consists merely of omissions or superficial defects, which can be remedied by additions only, or at least by changes which are not structural in character, and structural defects, on the other hand, which can be remedied only by rebuilding or reconstructing in whole or in part. Failure to use the kind of lock required by the specifications does not prevent substantial performance.1 Failure to remedy certain defects in painting and puttying in a wall, and failure to make certain changes in windows, do not prevent substantial performance of a contract to complete a house by a specified date if the defects are not of such a nature as to prevent the use of the house.2 Substantial performance of a contract for constructing a building at a cost of about thirty-five hundred dollars may exist, although part of the brick work is unfinished and part of the rubbish is left on certain of the floors, if the cost of completion is about three dollars.3 Failure to construct the windows in the basement story in line with the windows in the upper story does not prevent substantial performance if such windows can be reset at a cost of about six dollars.4 A contract to perform for about thirty-eight hundred dollars is performed substantially if the cost of supplying the omissions is about fifty dollars.5 A contract for the construction of a building at a cost of almost forty-nine thousand dollars may be performed substantially although there are certain omissions which would cost over two thousand dollars to remedy.6 Under a contract which involves an expenditure of twelve thousand dollars, an unintentional deficiency which can be remedied for five hundred dollars does not prevent substantial performance.7 A contract which is to be performed for six thousand dollars may be substantially performed, although the damage due to failure to perform literally is over two hundred dollars.8 A contract to decorate the walls of a room, do the woodwork and provide furniture for five thousand two hundred dollars is performed substantially where everything is done according to the terms of the contract except the woodwork; and the defects in that can be remedied for five hundred dollars.9 It is said that a contract to be performed for five thousand dollars may be performed substantially although the damage due to failure to perform literally is five hundred dollars.10 A contract which is to be performed for two hundred dollars may be performed substantially, although the damage due to failure to perform literally amounts to twenty-five dollars.11 A contract to construct certain work for thirty-five hundred dollars may be performed substantially if the damage due to defects and omissions is only thirty-three dollars.12 Recovery can be had in case of substantial performance of a contract to construct a heating apparatus.13 Under a contract to construct a steam heating plant at a cost of fourteen hundred dollars, inadvertent defects and omissions which can be remedied for less than two hundred dollars do not prevent such performance from being substantial14 The act of the contractor in installing a certain system of heating is said to be substantial performance of his contract to install such system and to obtain a license from 1he holder of the patent thereon; but he will be required to obtain such license before he can take advantage of a judgment in his favor.15 A contract to furnish glass for a house is performed substantially where, of over a hundred panes, all but two are perfect, and those two are defective in a way not uncommon in glass of that kind.16 A contract to furnish window screens and screen doors may be substantially performed, although one screen is defective.17 A contract for plumbing is substantially performed where the only defects are in certain connections which can be completed for a small part of the contract price, even though the system is useless as he left it.18 Recovery may be had upon a contract to supervise the construction of a building if such contract has been performed substantially.19 If one who has agreed to supervise the construction of a building for another causes the front of the building to be constructed in a manner which is not provided for by the plans, and if such mistake can be remedied for a cost of about four hundred dollars, the supervising architect may recover the contract price less the amount necessary to repair such defect.20 If a contract to construct a ditch in accordance with certain plans and specifications has been performed substantially, recovery may be had thereunder.21 A contract to construct a logging road is performed substantially if the road is ready for use by construction trains and for any traffic which the logging company may offer, although laying ties on the road is not complete, the ties being laid at double the proper distance for the straight portion of the track.22 If a contract to construct a logging road and to get ready for operation does not specifically require the contractor to buy or to furnish rolling stock, such contract is performed substantially, although he relies upon connecting carriers for supplies of freight cars.23 A contract by which A agrees to construct a level to drain B's mine in consideration of one-eighth of the ore mined therefrom, may be enforced by A though the level is permitted to get out of repair, if the level is sufficient for practical purposes and B is in no way prejudiced thereby.24 A contract for constructing waterworks, or furnishing water pressure, if substantially performed, entitles the contractor to a recovery, subject to recoupment for damages caused by failure to perform literally.25 The contractor is not liable for damages resulting from defects after the owner has had a reasonable opportunity to remedy them.26 A contract to sink a well is substantially performed in case of an oil well by drilling until oil is struck, even though the contractor loses his tools in the well, which is, on that account, somewhat less valuable.27 One who contracts to drill a well and commences work, may abandon that well and drill another one if completion of the first becomes impracticable by reason of the breaking of the drill.28 In case of a well for water, drilling till water is found is a substantial performance, although the contractor does not put a screen at the bottom of the well, because the other party orders him to stop work.29 A contract by which owners of adjoining sections of low land agree to fill in the land owned by them as fast as adjoining land is filled in, so that it is unnecessary to have a barrier on the division line to retain the earth thus filled, and provide that if such filling is not made the adjoining owner may build the barrier at the expense of the former, is substantially performed where the former builds such barrier at his own expense.30 A contract for constructing a public improvement is not discharged by the invalidity of a particular assessment which did not enter into the bid or contract.31 Under a building contract which requires the contractor to show that there are no outstanding claims which could be the basis of a lien before payment is due, the act of the contractor in showing to the owner receipts and vouchers for all labor and material is at least substantial performance.32
11 Nave v. McGrane, 19 Ida. III, 113 Pac. 82.
1 Stewart v. Breckenridge, - Colo. - , 169 Pac. 543.
2 Coen v. Birchard, 124 Ia. 394, 100 N. W. 48.
For a detailed discussion of substantial performance of a contract to do plastering according to certain specifications, see Smith v. Mathews Const. Co., - Cal. - , 179 Pac. 205.
3 Hahn v. Bonacum, 76 Neb. 837, 107 N. W. 1001, 109 N. W. 368.
4 Schindler v. Green, 149 Cal. 752, 87 N. W. 626.
5 Windham v. Independent Telephone Co., 35 Wash. 160, 76 Pac. 936.
6 Jefferson Hotel Co. v. Brumbaugh, 168 Fed. 867.
7 Daly v. New Haven Hotel Co., 91 Conn. 280, 99 Atl. 853.
8 Crouch v. Gutmann, 134 N. Y. 45, 30 Am. St. Rep. 608, 31 N. E. 271.
9 Pitcairn v. Philip Hiss Co., 113 Fed. 492, 51 C. C. A. 323 [reversing, 107 Fed. 425]. (The question was for the jury. The court could not say as a matter of law that such facts did not make substantial performance.)
10 Ellis v. Lane, 85 Pa. St. 265. (This statement was, however, an obiter, since the question of substantial performance was not raised in the trial-court.)
11 Bergfors v. Caron, 190 Mass. 168, 76 N. E. 655.
12 Hankee v. Arundel Realty Co., 98 Minn. 219, 108 N. W. 842.
13 Shepard v. Mills, 173 III. 223, 50 N. E. 709 [affirming, 70 III. App. 72].
14 Burgi v. Rudgers, 20 S. D. 646, 108 N. W. 253.
15 Hankee v. Arundel Realty Co., 08 Minn. 210, 108 N. W. 842.
16 Robert Mitchell Furniture Co. v. Monarch (Ky.), 30 S. W. 823.
17 E. T. Burrowes Co. v. Crittenden (Miss.), 37 So. 504. (At least, such question is for the jury.)
18 Jones & Hotchkiss Co. v. Davenport, 74 Conn. 418, 60 Atl 1028.
19 Foeller v. Heintz, 137 Wis. 169,
24 L. R. A. (N.S.) 327, 118 N. W. 543.
20 Foeller v. Heintz, 137 Wis. 160, 24 L. R. A. (N.S.) 327, 118 N. W. 513.
21 Lombard v. Overland Ditch & Reservoir Co., 41 Colo. 253, 02 Pac. 695.
22 Carolina Spruce Co. v. Black Mountain R. Co., 139 Tenn. 137, 201 S W. 154.
23 Carolina Spruce Co. v. Black Mountain R. Co., 139 Tenn. 137, 201 S. W. 154.
See also, Courtright v. Deeds, 37 Ia. 503, and Manchester & Keene Ry. v. Keene, 62 N. H. 81, 120.
24 Crawford v. Weatherbee, 77 Wis. 419, 9 L. R. A. 561, 46 N. W. 545.
25 Wiley v. Athol, 150 Mass. 426, 6 L. R. A. 342, 23 N. E4 311.
26 Hansen v. Beebe, III Ia. 534, 82 N. W. 942.
27 Holmes v. Oil Co., 13$ Pa. St. 546, 21 Am. St. Rep. 919, 2 Atl. 231.
28 Thompson v. Brown, 106 Ia. 367, 76 N. W. 819.
29 Madden v. Ostrich, 46 Minn. 538, 49 N. W. 301.
30 Commonwealth v. Wharf Co., 166 Mass. 395, 44 N. E. 350.
31 Morgan Park v. Gahan, 136 III. 515, 26 N. E. 1085.
The performance of all of the covenants of the contract except certain minor covenants, the performance of which is prevented by the adversary party, is undoubtedly sufficient,33 although this is rather an example of discharge by the act of the adversary party than an example of substantial performance.34